I. Introduction
On February 4, 2002, a U.S. Predator drone relayed images of a tall man thought to be the leader of Al Qaeda, Osama bin Laden, on the basis that he was tall and being treated with respect. As the man and two others emerged from a wooded area, a missile was launched from the drone, killing the individuals. This was the first time that a Predator drone was used in a targeted killing; however, there were doubts about whether the man targeted was in fact Osama bin Laden. A few days after the strike, Secretary of Defense Donald Rumsfeld was asked whether any evidence suggested that Osama bin Laden might have been killed and he responded, “We just simply have no idea.” One week after the strike, Department of Defense (DoD) spokeswoman Victoria Clark, stated, “We don’t know yet exactly who it was.” It was later reported that the tall man was not Osama bin Laden. The tall man, Daraz Khan, was five feet and eleven inches tall, shorter than Osama bin Laden by six inches. The individuals killed were simply poor locals scavenging in the woods for scrap metal. Afghan villagers questioned the attack and explained that the three men knew nothing of Islamic politics. Since the killing of Daraz Khan, it is estimated that between 8,858 and 16,901 people have been killed by U.S. drone strikes as of May 2020 in Afghanistan, Pakistan, Somalia, and Yemen alone.
As the use of drones in war becomes more common, and the number of drone strikes continues to increase, the demand for and procurement of contractors in drone strikes also increases. This increase in the use of contractors in drone strikes raises oversight and accountability concerns. As the ratio of contractors to government personnel increases, supervision decreases, and undue reliance on contractors intensifies. This lack of oversight makes it possible for contractors to sway the military decision-making process and for contractors’ assessments to preempt official decisions by the military. Then, if a mistake occurs, such as the targeting mistake that killed Daraz Khan and two other men, there is a gap in the U.S. legal system’s ability to hold U.S. civilians and foreign nationals residing in the United States accountable for war crimes committed abroad. Because the Trump administration has increased drone strikes by about 432% and considered privatizing the war in Afghanistan, as the number of private contractors increases these oversightand accountability concerns will only be exacerbated. This can be remedied through contractual changes that outline a review process for decisions to deploy target strikes — in which lives will be taken — and congressional action that increases accountability, which together, will alleviate concerns brought from having more civilian contractors closer to the battlefield.
This Note will first give a general background of the use of drone strikes in Part II. Then, it will discuss the legality of the use of drones for lethal attacks under both international and domestic law. In addition, this Note will demonstrate how the lack of oversight over contractors will result in mistakes in the battlefield and, when a mistake occurs, how contractors are not held accountable. Next, Part III of this Note will propose two solutions, the first being contractual changes that outline a chain of command and review process for drone strikes, and the second being congressional action that extends courts’ jurisdiction over the military to civilian contractors. These measures will increase oversight over contractors and will hold them accountable for mistakes resulting in unjustified casualties.
II. Background
A. The Historic Use of Drones During the Twentieth Century
As a precursor to drone technology, airplanes have been used in warfare since the early 1900s. Despite the innovation that air warfare brought to the conflicts, certain inherent risks and limitations came along with it. A key fear was the risk of losing well-trained pilots, which is not a concern if an unmanned plane did not return to base. This led to the development of unmanned aerial vehicles (UAVs), more commonly known as drones, which have been used since World War I. An unmanned aircraft is “[a]n aircraft that does not carry a human operator and is capable of flight with or without human remote control.” Originally, these drones were used for target practice. Beginning in World War I, “air torpedoes” were designed to be launched over enemies using a catapult, destroying the towns in which they landed. The use of drones continued to expand during World War II, when remote-controlled planes filled with explosives were used to crash into enemy targets. However, before the planes could be controlled remotely, they were comparable to a missile with an eject button, requiring pilots to aid in the takeoff of the aircraft and parachute to safety before it got to its target. This disadvantage was later solved, and remote-controlled aircrafts could be flown without a pilot in all phases of the flight.
B. Drone Warfare in the Twenty-First Century
Over the years, drones were adapted to be used for intelligence and surveillance purposes by adding video cameras onto the aircrafts. This surveillance system made it possible to locate Osama bin Laden in 2000 after Al Qaeda bombed the World Trade Center in 1993 and two U.S. African embassies in 1998; however, risks to troops and civilians made it impracticable to initiate a raid. To eliminate risking the lives of ground troops, the idea to attach missiles to drones developed. Later, even the advancement of missile-equipped drones was not enough, and drones were adapted to provide intelligence and surveillance services, such as sending live video feeds from cameras so that enemies could be tracked from anywhere in the United States.
After the terrorist attacks on September 11, 2001, the United States rapidly began to use drones with offensive capabilities. Three such drones are known as the Predator, the Sky Warrior, and the Reaper. The Predator can carry two missiles, and the Sky Warrior can carry four missiles, while the Reaper can carry eight missiles, or four missiles and two bombs. The Predator was designed “to provide to the warfighter persistent intelligence, surveillance, and reconnaissance information combined with a strike capability.” Similarly, the Reaper was “designed to execute time-sensitive targets with persistence and precision, and destroy or disable those targets.” However, these purposes understate the “true ‘hunter-killer’ role” that drones perform.
At first these hunter-killer types of drones had to be operated nearby on the ground; now images can be relayed, drones can be piloted, and their missiles can be aimed “from anywhere in the world.” Called remote split operations, these operations incorporate ground control for the takeoff and landing of the drone, yet are commanded and otherwise controlled in the United States. Remote split operations involve many different types of personnel, each with different duties:
(1) control of the aircraft and associated weapons system; (2) control of the sensors onboard the aircraft; (3) maintenance of the aircraft, sensors, and associated equipment; (4) analysis of information generated by the sensors; and finally (5) verification of information and direction of future action, including legal assessments as well as overall mission planning.
C. Role of Contactors in Drone Warfare
Contractors assist in various aspects of remote split operations, including piloting and analyzing data. In 2014, when the campaign against the Islamic State (ISIS) escalated in Iraq and Syria, the Air Force experienced a shortage in drone pilots, which forced them to rely on private contractors. However, according to the Air Force, contracted drone pilots merely assist in the phases of flights that do not involve targeting, “such as takeoff and landing.” Despite this role, contractors nevertheless help track targets by providing intelligence and surveillance. On the ground, contractors also collect and analyze the data gathered by drones, in which they help determine whether the people seen in the video footage are enemies or civilians. Likewise, contractors inform the pilots if they see something suspicious, such as a person holding a weapon. These observations influence whether a person is seen as a threat and thus is targeted, even if the contractors do not directly make the targeting decisions. For example, in February 2010, a civilian contractor analyzed video feeds from a drone that resulted in a U.S. Army captain ordering a strike that killed innocent Afghans. The targeting decision was based on a report that a convoy contained only military-age men thus suspected to be insurgents, but the analyst failed to notice the women and children in the vehicles as well. Despite this failure, a strike was ordered that killed twenty-three “innocent men, women and children.” In some cases, because contractors have greater subject matter expertise resulting from being moved around between posts less often than their military counterparts, the military official making the targeting decision may unduly rely on the contractor, “effectively placing them in the chain of command.” As a result, contractors are put into the process, which the Air Force refers to as the “kill chain” because they provide the surveillance that results in a strike.
While this description of the role of contractors applies to conventional military forces, the Central Intelligence Agency (CIA) also hires contractors for operations where the military is not based; however, the role of contractors here is unknown because the operations are classified. Covert operations by the CIA are not publicly acknowledged, and it is difficult to assess the role of contractors because information is not available as to where the operations take place, who makes decisions, how targets are selected, and “how many people have been killed” during the operations.
D. Increasing Use of Drone Strikes
Since the development of drones with offensive capabilities, the number of drone strikes has increased. President George W. Bush authorized forty-nine drone strikes in Pakistan and Yemen during his entire two-term presidency. During his eight-year term, in total, President Obama authorized more than five hundred fifty drone strikes in Pakistan, Yemen, and Somalia. In comparison, President Trump authorized at least eighty drone strikes in Pakistan, Yemen, and Somalia during only the first year of his term — a rate higher than his predecessors. Additionally, the Trump administration has requested increasing amounts of money for drone procurement, research, and development, and construction: the DoD’s budget request for drone expenditures for fiscal years 2017, 2018, and 2019 were respectively 4.61, 6.97, and 9.39 billion dollars. As the number of drone strikes increases, it can be expected that the number of personnel to operate drones will need to increase, and, thus, the need for contractors will increase. Operating drones requires more people than required to fly a conventional plane. About 90 to 200 personnel are required to accomplish a single twenty-four-hour operation with Predator and Reaper drones, whereas operating more complex drones requires 300 to 500 personnel. This number includes personnel that are physically near the operation and those working within the United States to analyze the data.
Because the Air Force is short of crews to fly the drones, a need for civilian contractors has developed, including intelligence analysts who examine the videos coming from drones — an enormous task as about “1,100 hours of video data” was collected each day in 2015 — and mechanics who maintain the drones. An overreliance on contractors was seen in 2010 when the number of contractors for the DoD, the Department of State, and the U.S. Agency for International Development (USAID) in Afghanistan and Iraq was more than 260,000 people, eighty percent of whom were not U.S. citizens but “local or third-country nationals.” At this point, the contractors outnumbered U.S. military and the federal-civilian workforce. This overreliance continued in 2016 when the conflict with ISIS increased the demand for remote split operations and “led to pilot shortages.” In 2016, the pilot shortage was estimated to be 700 pilots for the Air Force alone, which further increased to a shortage of about 2,000 pilots in 2018. As a result of this, the Air Force planned to slowly train more pilots each year to reach a goal of 1,500 new pilots per year by 2022. However, in 2020, it became clear that the Air Force would not meet the year’s goal of 1,480 new pilots, but rather would only train about 1,300 new pilots, which is only twenty-one more pilots than it had trained in 2019. Thus, it seems that the pilot shortage will be a continuing issue.
E. Drone Strikes Must Comply with Both International Law and Domestic Law
Drone warfare has expanded conceptions of what is a permissible use of force under both domestic and international law. International law generally requires some kind of judicial procedure before anyone is executed, as it adheres to the principle that every human has an “inherent right to life.” Nevertheless, international law permits the targeting of enemy combatants without due process in two situations: (1) when there is an armed conflict; and (2) when a state is acting in self-defense. The Geneva Conventions are a series of treaties that prescribe the laws of armed conflict when this type of force can be used. A major goal of the Geneva Conventions is to protect the civilian population. Protocol I of the Geneva Conventions requires states to take precautions with respect to planning attacks, including (1) taking all possible measures to ensure that the targets are not civilians but only military actors; (2) choosing means or methods of attack with the least expected incidental death or injury to civilians; and (3) refraining from initiating attacks with risks to civilians that are not proportional to the military advantage. If a target is a civilian or the attack may cause accidental loss of civilian lives, the attack must be cancelled or suspended. If these precautions are taken and armed conflict exists, then the use of a drone strike is permissible without a judicial process.Additionally, a state may also claim that a strike was justified because the state was acting in self-defense after an attack has occurred. The right to self-defense also is generally understood to apply to use of force necessary to prevent an imminent attack, not just after an attack has occurred.
Consistent with the international law principle against extrajudicial killings, the United States has prescribed a general ban on political assassinations. However, the United States tends to distinguish targeted killings from assassinations, arguing that assassinations are unlawful whereas targeted killings are lawful. Furthermore, officials from multiple administrations have concluded that the ban on assassinations does not apply in war or to actions taken in self-defense. For example, the Bush administration prepared a list of terrorist targets that the CIA was authorized to pursue. In addition, on November 3, 2002, a drone hit and killed six men traveling in a car in Yemen: one was a U.S. citizen and another, Qa’id Salim Sinan al-Harithi, was believed to have been a planner on the attack on the U.S.S. Cole in 2000. Despite the U.S. stance, the United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions concluded this strike constituted a case of extrajudicial killing even though it recognized that the United States has a responsibility to protect its citizens.
Outside areas of active hostilities, where there is no armed conflict, Protocol I of the Geneva Conventions does not apply and the restrictions on force are greater. To provide guidance on the use of force outside areas of activities hostilities, in May 2013, President Obama issued the Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (PPG). The PPG requires that drone strikes only be used (1) against a highvalue terrorist; (2) when the suspect poses a “continuing, imminent threat to U.S. persons;” (3) when there is “near certainty” the target is present; (4) when there is “near certainty” that no civilians will be injured or killed; (5) when capture is infeasible; (6) when governmental authorities of the other nation are unwilling or unable to address the threat; and (7) when “no other reasonable alternatives” exist to address the threat.
The U.S. Government has attempted to provide for greater accountability. In July 2016, President Obama issued Executive Order 13732 that required that the Director of National Intelligence issue an annual report indicating the number of drone strikes taken outside areas of active hostilities and the number of combatant and civilian deaths that resulted. Congress also enacted the 2018 National Defense Authorization Act (NDAA), which included transparency requirements. Section 1057 requires the Secretary of Defense to submit an annual report to congressional committees indicating the number of civilian casualties resulting from military operations. Furthermore, section 1264 compels the President to submit a report on the legal and policy frameworks for the use of military force and related national security operations, and to provide notice for changes made to the framework within thirty days.
Despite this progress in increasing transparency, reports indicate that the Trump administration has detrimentally revised past drone strike policies. Journalists allege that there are three changes: (1) eliminating the continuing and imminent threat standard used in the Obama administration; (2) relaxing the “near certainty” requirement to a “reasonable certainty” requirement that a target is present; and (3) eliminating the involvement of high-level officials in the decision process. This revision would allow the more frequent and broader use of drone strikes, thus creating a greater risk for civilian casualties. In addition, the Trump administration has decreased transparency regarding drone strikes, reversing the Obama administration’s progress in holding the government accountable for mistakes. President Trump signed Executive Order 13682, revoking President Obama’s executive order requiring a yearly report summarizing the number of drone strikes and resulting deaths. The Trump administration’s failure to release information of reported policy changes and lack of public detail provided in the report on civilian casualties required by the NDAA further indicates a lack of transparency.
F. The Lack of Accountability Stems from Difficulties in Holding Contractors Responsible for War Crimes in Courts.
International customary law stands for the principle that individuals will be held criminally responsible for their war crimes. Consistent with this principle, international law and most domestic legal systems hold that an individual must act willfully to be liable for the commission of a war crime. This liability is difficult to prove in cases involving drone strikes because it is not clear who was responsible for the decision to strike.
1. The nature of drones strikes makes it difficult to assign responsibility to a single actor.
The fragmentation of decision-making in drone strikes means that the person pulling the trigger is not the sole decision-maker and that the leader may not know of each subordinate’s specific actions. A former Air Force member, Eric Herter, described this degree of separation, stating:
The atrocity is the result of a chain of events in which no man plays a single decisive part.
The technicians who program the computer perform no act of war, the man who places the sensor does not see it operate. The man who plots the strike never sees the plane that conducts it. The pilot, navigator, and bombardier do not see the bomb hit. The damage assessor was not in the plane, and all the others who helped mount the raid never participated in it all.
The idea that many people take small steps that facilitate the commission of a drone strike directly contradicts the idea of individual responsibility. In addition, war crimes tend to be committed within the context of a group, such as a member of a military or a private contractor, rather than on an individual basis. However, merely showing membership within a group is not a sufficient ground for liability, which requires an additional showing that the individual was “personally implicated in the commission of acts.” As a result, prosecuting actions that cause an illegal drone strike requires a form of indirect criminal accountability.
One method of indirect criminal accountability is the doctrine of command or superior responsibility, which permits holding superiors liable for the acts of subordinates. A superior can only be liable for subordinates if the following three elements are met: (1) she knew or should have known of the act; (2) she had effective control over the subordinate; and (3) she failed to prevent it. This only requires that the subordinate, not the superior, intended to commit the crime. In cases of drone strikes, it is unlikely a superior will have actual knowledge of the unlawful targeting decision and it is difficult to prove that the superior should have known that they would commit a crime. Superiors should know of the crime when there is information that puts them “on notice of the risk” that is “sufficiently alarming to justify further inquiry.” Mere negligent supervision will not satisfy the constructive knowledge threshold required to find the superior responsible. Therefore, the difficulty in assigning responsibility to an individual in the group of actors, and even the supervisor of the group, results in a lack of individual accountability for an unlawful drone strike.
2. Courts must have jurisdiction over contractors to hold them accountable.
Even if responsibility for the decision to strike can be determined, a court must have jurisdiction over the person responsible to hold that person legally accountable. Both international and domestic laws provide for remedies in their respective courts; however, there is difficulty in obtaining jurisdiction over U.S. citizens in international courts and over contractors in U.S. courts.
a. Jurisdiction under international law
Under international law, the International Criminal Court (ICC) has the jurisdiction to prosecute war crimes. However, the ICC can exercise jurisdiction only over states that are a either a party to the treaty, or have accepted its jurisdiction with respect to the specific crime and that are either (1) the state in which the war crime occurred; or (2) the state from which the alleged war criminal is a national. Because the United States signed the Rome Statute creating the ICC but later indicated its intention not to become a party, the United States can be subject to the jurisdiction of the ICC only if the crime occurred in a party-state. Many states in the Middle East are not parties to the Rome Statute; thus crimes related to improper targeting decisions in these states could not be prosecuted by the ICC unless the state accepted the jurisdiction of the court over a specific crime. Without jurisdiction in an international court, unlawful targeted killings could be prosecuted by the state in which the attack occurred or by the United States itself.
b. Domestic jurisdiction under the Military Extraterritorial Jurisdiction Act
Under domestic law, a presumption exists that laws apply only within the territory of the United States, not outside of it. Criminal laws will not apply to acts outside of the United States unless Congress clearly intended them to do so. The Military Extraterritorial Jurisdiction Act (MEJA) allows for the prosecution of certain felonies committed outside the United States by employees of the Armed Forces or people accompanying the Armed Forces. However, this statute does not apply to allegations against contractors who are not employed through the DoD. Under the statute, employees of the Armed Forces include employees of the DoD, DoD contractors and their employees, and contractors and their employees of federal agencies if employment is related to the mission of the DoD. Because it is not clear when a contractor’s employment is related to the mission of the DoD, this ambiguity likely leaves out contractors for the Department of State, USAID, and the CIA. The former Assistant Attorney General of the Criminal Division of the Department of Justice, Lanny Breuer, explained this gap in accountability, stating:
The unfortunate consequence of the current state of the law is that, for example, a department of Defense contractor who murders a colleague in Iraq may be prosecuted under MEJA, while a contractor with another U.S. agency who commits the very same crime may not be, since he or she may not be covered by MEJA. Similarly, an employee with a non-Department of Defense agency who rapes a foreign national in the employee’s diplomatic residence may be prosecuted for committing a crime within the special maritime and territorial jurisdiction of the United States, while the same person might not be able to be prosecuted if he commits the same crime in the victim’s apartment.
In an attempt to fill this gap, the U.S. House of Representatives passed the MEJA Expansion and Enforcement Act of 2007, which was to make MEJA applicable to contractors employed “by any department or agency” working near an area where the Armed Forces are running an operation. In addition, the bill provided for special units to investigate criminal offenses by contractors. The 110th Congress adjourned before the Senate took action on the bill.
Still concerned about the jurisdictional gap left by MEJA, four consecutive congresses considered the Civilian Extraterritorial Jurisdiction Act (CEJA). CEJA would have supplemented MEJA by adding a new section providing for jurisdiction over contractors employed by agencies other than the DoD. This would have held employees and contractors of federal non-DoD programs and activities to the same standards as those employed by the DoD. In addition, CEJA would have created investigative task forces, which would have been required to investigate allegations of criminal offenses by contractors. These task forces would have resulted in a more frequent use of MEJA because the U.S. Attorneys’ Offices currently have the sole responsibility for prosecuting these offenses using their own resources to do so. U.S. Attorneys’ Offices have experienced a lack in resources and prosecutors, which has resulted in fewer prosecutions and choosing not to prosecute difficult cases. Because these cases take a lot of resources to prosecute, MEJA is used infrequently to prosecute contractors. Despite eliminating the jurisdictional part of the challenge, CEJA was never enacted, leaving it difficult to obtain jurisdiction over private contractors. Even if CEJA was enacted, it is unclear whether these difficult cases would be prosecuted and whether the statute would be upheld as constitutional due to the unresolved question of whether Congress can regulate civilian contractors.
c. Domestic jurisdiction under the Uniform Code of Military Justice
An alternative to prosecution using MEJA is prosecution under the Uniform Code of Military Justice (UCMJ), which subjects military personnel to prosecution for crimes in courts-martial. Again, while this provides clear jurisdiction over military personnel, jurisdiction over contractors is controversial under the UCMJ. The U.S. Supreme Court and U.S. Court of Military Appeals have indicated disapproval of trying civilians in courts-martial during peacetime, thereby limiting its use to times of declared war. While this seeming reproof suggests that contractors could be liable in times of declared war, this leaves a jurisdictional gap because Congress has been reluctant to formally declare war — the last time Congress declared war being in 1942 despite the consistent use of armed force abroad since then. Seeking to close this gap resulting from the lack of formal declarations of war and the hesitations in using MEJA, Congress amended the jurisdictional scope of the UCMJ. The amendment changed UCMJ subsection 802(a)(10), which provides for jurisdiction over civilians accompanying the military, from applying in times of “war” to “declared war or a contingency operation.” Although this amendment successfully expanded the jurisdiction of the UCMJ, applying it to contractors is not without problems.
For example, courts-martial may still decline to hear cases involving contractors given the debate over what “constitute[s] a ‘contingency operation’” and whether the contractor was part of the operation. Furthermore, the U.S. Supreme Court decided that courts-martial could never assert jurisdiction over civilians when courts are open. Thus, because a U.S. court may theoretically exercise jurisdiction under MEJA, this could undercut any jurisdiction asserted by courts-martial and allow defendants to wait and see if they will be prosecuted in U.S. courts. Even if these challenges are overcome, a successful case will likely need to survive any challenge on constitutional grounds stemming from the inherent procedural differences in trial by courts-martial compared to federal criminal trials. Overall, due to the obstacles in obtaining jurisdiction over contractors, there is arguably no real judicial process for holding contractors accountable for unlawful drone strikes.
G. The Lack of Accountability and Oversight Over Drone Strikes by the United States Has a Large Impact on the Permissibility of Drone Strikes Around the World.
The lack of accountability and oversight over drone strikes results in loose standards governing when it is permissible to use lethal force. These loose standards can cause increased deaths of non–combatants or civilians. Because the United States is setting an international precedent for the lawful use of drone strikes, failing to change policies and procedures for drone strikes could cause the number of mistaken deaths from U.S. strikes to be intensified on an international scale. The United States is a leader in drone technology, and it would be unsurprising if other countries follow the standards set by it. For example, the United Kingdom rationalized a drone strike against one of its citizens in Syria based on the U.S. strike against a U.S. citizen in Yemen, Anwar al-Awlaki, using the justification of self-defense. If U.S. contractors are not held accountable for unlawful drone strikes, this will signal to the international community that it is acceptable to kill without due process when states are not in armed conflict and without respect for the laws governing armed conflict. If this becomes a norm among the international community, U.S. leaders and citizens alike could become exposed targets overseas. The United States would want to hold other states accountable for targeting its citizens, but would face international scrutiny when it attempted to enforce human rights laws on other countries that it does not comply with itself.
The extreme consequences of additional countries following the current U.S. policies can be seen in the number of people killed by U.S. drone strikes. The Bureau of Investigative Journalism reports that the running total of people killed by U.S. drone strikes up to March 2020 in Afghanistan, Pakistan, Somalia, and Yemen is between 8,858 and 16,901 people. Of those killed, it is estimated that between 910 and 2,200 were civilians, and between 283 and 454 were children. As of November 2019, at least thirty-nine countries have armed drones. In addition to this total, non–state actors also have used armed drones. By taking into consideration the number of drone-related deaths with the number of countries that have armed drones, it is clear that if the near fifty state and non–state entities who possess armed drones acted in accordance with current U.S. targeting standards, exponentially more drone-related deaths will occur.
III. Argument
In light of this increase in the use of drones and the concurrent lack of accountability around their use, it is important that a solution is both prospective and retrospective by taking measures to prevent mistakes from occurring and providing accountability for mistakes made by drone contractors. Congress should take prospective measures to increase oversight over contractors by clarifying the chain of command and creating a review process over contractors’ decisions. Additionally, Congress should increase oversight by requiring greater reporting from the agencies using drones, and hold contractors accountable by making them liable for the war crimes they commit.
A. Congress Should Clarify the Chain of Command and Create a Review Process over Contractors’ Decisions.
Congress should require that contracts or procedures should be modified to outline how targeting decisions will be made and provide for a review process. Contracts should be more specific to ensure that individual contractors cannot influence targeting decisions to the extent that they are effectively making the decisions or in the chain of command. An example of a vague contract is between MacAulay-Brown, Inc. (MacB) and the Air Force Special Operations Command, which merely states that contractors cannot be “placed in a position of command, supervision, [or] administration of control over [m]ilitary or [c]ivilian personnel.” This does not make clear what actions by contractors would place them in a position of command or give them control over other personnel. Rather than outlining specific prohibited actions, which is unlikely to provide contractors and the military enough flexibility to act in certain situations, the contract should outline procedures for targeting decisions that ensure military personnel have oversight over contractors and that military personnel make the final decision on targeted strikes.
This can be done by mimicking the well-defined chain of command already utilized in the military. This chain of command gives commanders all authority and accountability for any drone strike. The person tasked with authority and accountability over drone strikes will have an incentive to ensure that each step in a targeting decision complies with the law. In addition, this oversight will contribute to the ability of courts to find individuals responsible for the strike under the theory of command responsibility because it can be said that the individual had knowledge or should have known that the crime would occur.
Additionally, contracts should require that private contracting companies adhere to a review process in each step of the targeting process. This can also mirror the review process used by the Air Force. Air Force commanders are assisted by members of the JAG Corps (known as judge advocates), who are uniformed attorneys that provide legal advice on the laws of armed conflict and the rules of engagement. For example, when a contractor reviews video surveillance to determine whether a person presents a threat, attorneys trained in the Geneva Conventions and domestic law and policies can determine whether that person will be deemed a civilian under international laws and standards. If the person on the screen is a civilian, the attorney can ensure that the civilian is not reported as a threat to a pilot awaiting this decision to send a missile at a target. In addition, attorneys could review later stages of operations to ensure the type of weapons used are appropriate and the risk to nearby civilians is proportional to the military advantage. A rigorous review ensures that lethal force will not be used until it is clear that no other feasible option exists and that civilian casualties will be low.
Changing contracts and procedures is a method for providing greater oversight over contractors. Requiring that military personnel — who already have established operating procedures and chain of command — have oversight over contractors, make the final targeting decisions and review the decision process would increase transparency and create a greater expectation of legality. This method is beneficial because it would prevent improper strikes, rather than merely providing for retrospective action after mistakes are made. However, if a mistake is made, it is also vital that such action is taken to hold contractors accountable.
B. Congress Should Take Action to Increase Oversight over Contractors by Increasing Reporting Requirements.
Increasing transparency will further protect against error and abuse because it is more likely that contractors will be held accountable for the crimes they commit abroad. To that end, Congress should amend the NDAA to make reporting requirements more specific regarding civilian casualties resulting from drone strikes. Currently, the NDAA requires a report of civilian causalities from all military operations. Although this mandate includes casualties from drone strikes, it does not require a specific report on the casualties resulting from drone strikes by themselves. Thus, the number of casualties from drone strikes can be hidden within a larger number. This does not provide much information about the risk of civilian casualties and targeting decisions made by drone operators. Instead, the NDAA should require a report on the number and location of drone strikes and a report on the number and location of combatants and noncombatants killed by drone strikes, as well as the methodology used to distinguish combatants from noncombatants. These greater reporting requirements will help the government evaluate the legality of its drone policy. They will also allow the government to better evaluate the contractors’ performance. If the government can hold the contractor accountable based on its performance, this gives contracting companies an incentive to monitor their staff closely and will ensure that the contract provisions described above are implemented. In turn, this would increase the reliability of targeting decisions.
C. Making Contractors Liable for the War Crimes They Commit Would Increase Accountability of Contractors.
Contractors are not held accountable for the war crimes that they commit because the nature of drone strikes makes it difficult to prove an actor is individually criminally liable. In addition, even if a contractor could be found individually responsible, contractors will still not be held accountable because courts do not have jurisdiction to hear drone strike cases involving many contractors. To increase accountability of contractors, there must be a method to prove individual liability and to make contractors liable in courts.
1. Contracts need to define who bears responsibility when an unlawful drone strike occurs.
Congress should mandate that contracts indicate who bears responsibility for drone strikes in each stage of the process so that it is clear who is responsible for the decision to make a drone strike. This is similar to the military culture in which leaders take responsibility for mistakes on the battlefield. For example, the head of U.S. Navy SEAL Team 3 Task Unit Bruiser explained why he took ownership of everything that went wrong on the battlefield, stating, “There is only one person to blame for this: me. I am the commander. I am responsible for the entire operation. As the senior man, I am responsible for every action that takes place on the battlefield.” Additionally, military leaders have historically been held accountable for the war crimes of the group, such as the Nuremburg Trials in which top Nazi commanders were prosecuted. Similarly, a contractor can be held accountable under a theory of command responsibility if she should have known that an inferior would commit a crime. A well-defined chain of command will put supervisors on notice for when they should have knowledge of their inferior’s actions, thus making clear when the supervisor is criminally responsible for the inferior’s actions. This process will help ensure that courts will have a person to hold accountable for an improper drone strike in which innocent people are killed because the contract will indicate who should have known of any inferiors’ actions.
A valid critique of this proposal is that if contractors know they could be held liable for their actions, they may require a higher salary or be deterred from taking on contracts, which could result in a decrease in contractor availability. Nevertheless, the higher payment to contractors that may result will also reflect contractors working more carefully. In addition, contractors should not be deterred from taking on contracts if they do not anticipate taking a role in which their decisions effectively place them in the military chain of command, which should not occur. This will also provide a greater incentive to utilize military lawyers who are trained in the laws of war to ensure these laws are followed in the decision-making process. Overall, the ability to hold both military personnel and contractors accountable helps establish credibility for the United States that it is committed to obeying the laws, which “is crucial, not just for [U.S.] image abroad and [U.S.] diplomatic relations, but for ensuring [U.S.] national security.”
Additionally, the government and contracting companies could be held liable for tort claims, including wrongful death and intentional infliction of emotional distress. Contracts should specify that the contracting company will take on the costs of any mistakes resulting in tort claims. Unfortunately, it is possible that neither the government nor the contractor will want to sign a contract that imposes institutional liability for mistakes of any one of its personnel. However, this type of accountability was accepted when Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA establishes liability for the clean-up of hazardous waste, which can cost millions of dollars, and includes liability for contractors. In cases in which the military contractors are liable for clean-up costs, the entire cost may be allocated to the government as “part of the war effort for which the American public as a whole should pay.” Nevertheless, “industrial operations undertaken for the purpose of national defense, standing alone, d[o] not justify allocating all costs to the government.” Instead, the military contractor may be liable for all or most of the clean-up cost, depending on the amount of control the government exerts over the quotidian operations of the military contractor. In this way, CERCLA “assures that the cost of chemical poison releases are borne by those responsible for the releases.” Contractors would similarly be liable for the costs of reparations to victims, thus ensuring the cost is assumed by the entity that had control over the action. This accountability would likely incentivize contracting companies to ensure the military remained in control of all operations and would better reflect the DoD policy that “risk mitigation shall take precedence over cost savings when necessary to maintain appropriate control of [g]overnment operations and missions.”
2. Congress should amend MEJA to provide jurisdiction over contractors of additional government agencies.
Congress should act by passing legislation similar to CEJA. MEJA should likewise be amended to extend jurisdiction to contractors employed by agencies other than the DoD, such as the Department of State, USAID, and the CIA. This could be done by amending section 3267 of MEJA, which defines employment by the Armed Forces as:
(i) a civilian employee of . . . (ii) a contractor (including a subcontractor at any tier) . . . or (iii) an employee of a contractor (or subcontractor at any tier) of—(I) the Department of Defense . . . or (II) any other [f]ederal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.
Contractors of other federal agencies could simply be included by changing this language to “a contractor of any other federal agency, or any provisional authority” without requiring a finding that the employment relates to the DoD’s mission. Originally, MEJA recognized the need for contractors to be held liable for their crimes, but did not consider that contractors may be working for federal agencies other than the DoD. Therefore, this amendment would be consistent with the original intent of the statute, but modernize it in light of changed circumstances.
Because MEJA is rarely applied to prosecute contractors, the proposed provision within CEJA to create units required to investigate and prosecute incidents involving contractors should be enacted to ensure that contractors are brought to justice. Although amending MEJA to apply to all contractors will alleviate the need to litigate whether MEJA applies to certain contractors, many of the costs would still deter under-resourced U.S. Attorneys’ Offices because they will bear the costs of gathering evidence, transporting witnesses, translating documents and testimony, and increased work hours to understand an unfamiliar subject. Without a requirement to investigate and prosecute these cases, contractors will not have an incentive to act in accordance with the laws because they will know that incidents will rarely be prosecuted. One can argue that it would be easier to allow the national governments where these crimes occurred to prosecute instead. However, this will not increase accountability because these governments rarely prosecute these cases. Additionally, contractor-defendants may prefer to be tried in a more familiar justice system, and one senator has noted that this would “protect Americans by providing the option of prosecuting them in the United States, rather than leaving them subject to hostile and unpredictable local courts.”
Nevertheless, there are high costs associated with increasing oversight and accountability. These include hiring attorneys to assist in the review process, needing additional people on the ground to record the strikes, administrative costs related to reporting requirements, and litigation. Despite various different expenses, these costs will not be significant. The Congressional Budget Office has found that implementing CEJA “would have no significant cost to the federal government.” In addition, those prosecuted and convicted could be subject to pay fines, so the government could profit from any legislation increasing litigation. Any additional costs would likely be offset by less civilian casualties and, thus, less payouts to survivors of drone strikes and victims’ families. In fiscal year 2016, the DoD paid $885,090.20 to victims and their families in Afghanistan alone. Furthermore, in just one instance, the United States reportedly paid over $1,000,000, albeit without acknowledging any blame for the incident, to families when a drone thought to target an al-Qaeda militant instead struck a wedding procession, killing twelve civilians and injuring many more. Overall, even if costs are increased, this will be a small financial burden in comparison to saving lives and putting a stop to human rights abuses.
IV. Conclusion
Due to the increasing use of drone strikes and greater privatization of activities traditionally executed by the military, a greater number of private contractors will be used during drone strikes. This upsurge calls for changes that provide greater accountability and oversight over contractors. Greater oversight can be achieved through contractual changes that ensure contractors are not making life or death decisions. In addition, contracts should outline a required review process over decisions made by contractors to ensure compliance with international and domestic laws. Contractor accountability can be increased in the event of civilian casualty by extending U.S. federal courts’ jurisdiction over the military to include civilian contractors. Overall, this revision will reduce the number of innocent civilian deaths resulting from unlawful drone strikes and increase the international legitimacy of the United States.
